I was asked to write the “Posts of the Week” for Techdirt this past weekend and used it as an opportunity to convey some of the ideas I explore here to that audience. The post was slightly constrained by the contours of the project — for instance, I could only punctuate my greater points with actual posts that appeared on Techdirt last week — but I think they held together with coherence, and I appreciated the chance to reframe some of the issues Techdirt was already exploring in this way.

In any case, I’ve decided to cross-post my summary here, partly because I always like to host a copy of my guest blog posts on one of my sites, and partly because it gives me a chance to update and annotate those ideas further. Please do go visit Techdirt though, which was kind enough to ask me to do this, to read more about the items described below.Continue reading »

But even if these programs are consistent with either their enabling statutory language or previous Fourth Amendment case law, it is not at all clear that they are consistent with either the spirit or bare language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over time, on a case by case basis specific to the facts before them, courts have whittled away at what we might understand the Fourth Amendment to protect. Which is unfortunate, because on its face it would appear to protect quite a bit of personal privacy from government intrusion, except under very narrow circumstances. But as we learn more about these surveillance programs we see how, even if “legal,” they intrude upon that privacy, and in a way that essentially destroys all vestiges of it for everyone, criminal (or foreign) or not.

I was saddened to hear the news about Doug Engelbart’s passing. Although most famous for having invented the mouse (I once had the privilege of holding the original – in some ways it was even better than its successors, as its two beveled wheels allowed the mouse to easily be drawn in a straight line), his contributions to the digital world we now take for granted run much deeper than that specific innovation.

I had the privilege of meeting Mr. Engelbart on a few occasions, and in the wake of this news I’m prompted to repost something I wrote a few years ago following one of those encounters, something that contemplated how law and innovation so often seemed to collide in a way deleterious for the latter. As we take this moment to recognize the rich legacy Mr. Engelbart leaves the world it should remind us to never allow law to deprive the world of other such gifts in future.

In early December I attended the “Program for the Future,” celebrating the 40th anniversary of a seminal event in technological history: Doug Engelbart’s “mother of all demos.” While today the technologies he showed off in his 1968 presentation must seem ordinary and quaint, back then they were revolutionary and laid the foundation for what we now take for granted.

While perhaps most widely known for being the world debut of the mouse, which he invented, Engelbart’s presentation is most notable for how it advanced collective intelligence. What made the presentation so important weren’t the technologies themselves but the human problems they stood to solve.

So in celebration of Engelbart’s important contribution to the world, a group of futurists and technologists gathered together at The Tech museum in San Jose to contemplate the future innovations yet to come. Personally, for me, the event was a bit nostalgic. Before law school, as a technologist in Silicon Valley, I often attended such events. Sometimes they got a bit silly, as there’d be so much “blue skying” and thinking about what could be done that nothing would actually get done. But these kinds of events were still important and because they fostered an environment where the bolts of inspiration could be seized upon and fanned into exciting innovations.

I still gravitate towards technology-related events, only today they are invariably legally-related. At these events technology is always considered in the context of regulatory frameworks, and the people doing the thinking are always lawyers and policy makers. Notably, however, at this event I was only one out of maybe a handful attendees who was a lawyer. And therein lies the disconnect.Continue reading »